PETER J. SARDA and wife, PATRICIA T. SARDA,
Petitioners,
v
.
CITY/COUNTY OF DURHAM BOARD OF ADJUSTMENT and JOE MITCHELL,
Respondents.
Wallace, Creech & Sarda, L.L.P., by Peter J. Sarda and Richard
P. Nordan, for petitioner-appellees.
Office of the Durham County Attorney, by Lowell S. Siler, for
respondent-appellant City/County of Durham Board of
Adjustment.
Law Office of Brenda M. Foreman, by Brenda M. Foreman, for
respondent-appellant Joe Mitchell.
ELMORE, Judge.
Joe Mitchell (“respondent Mitchell” or “Mitchell”) moves this
Court pursuant to N.C.R. App. P. 37(a) to determine: (1) that
Peter J. Sarda and Patricia T. Sarda (collectively, “petitioners”)
lacked standing to appeal to the superior court from the
City/County of Durham Board of Adjustment's (“respondent Board” or
“Board”) decision granting a special use permit in this matter; (2)
that petitioners lack standing to be a party to the subsequent
appeal to this Court from the superior court's order; and (3) that
petitioners' appeal should be dismissed. We agree, and pursuant toN.C.R. App. P. 37(b), hereby allow respondent Mitchell's motion to
dismiss the instant appeal.
On 24 October 2000, respondent Board granted a Minor Special
Use Permit to respondent Mitchell, allowing Mitchell to operate a
“Paintball Playing Field” on a tract of land he owns in rural
Durham County. Petitioners, owners of a residential tract located
across North Carolina Highway 98 approximately four hundred (400)
yards from Mitchell's tract, appeared at the hearing before the
Board and unsuccessfully argued against issuance of the special use
permit. Pursuant to N.C. Gen. Stat. § 153A-345(e)(2001),
petitioners filed a Petition for Writ of Certiorari (“Petition”) on
23 November 2000, seeking review by the Superior Court, Durham
County, of the Board's decision to grant the special use permit.
The Honorable Narley L. Cashwell heard this matter on 9 October
2001, and by his order filed 22 October 2001, the superior court
reversed the Board's decision, finding specifically that the
special use permit should not have been issued in the absence of
“evidence which is competent, material and substantial in support
of the Board's finding that the proposed use is not injurious to
the value of the properties in the general vicinity.”
Respondents thereafter filed separate Notice of Appeal from
the superior court's judgment to this Court on 13 November 2001
(respondent Board) and 29 November 2001 (respondent Mitchell). On
28 May 2002, pursuant to N.C.R. App. P. 37(a), respondent Mitchell
filed a “Motion to Dismiss Appeal (Contest Standing).” RespondentMitchell's motion to dismiss the instant appeal was referred to
this panel for determination.
In moving to dismiss the instant appeal, respondent Mitchell
asserts that petitioners lacked standing to appeal to the superior
court from the respondent Board's decision to issue the special use
permit to respondent Mitchell. Respondent Mitchell further asserts
that as a consequence of petitioners' lack of standing, (1) the
superior court lacks subject matter jurisdiction over the
controversy, such that its 22 October 2001 order reversing the
Board's decision is a nullity; and (2) petitioners are not proper
parties to the instant appeal before this Court.
In a case where, as in the case at bar, nearby landowners
appealed to the superior court from a municipal board of
adjustment's decision to grant a special use permit, this Court
held that the nearby landowners lacked standing where
the petitioners failed to allege, and the Superior Court
failed to find, that petitioners would be subject to
'special damages' distinct from the rest of the
community. Without a claim of special damages, the
petitioners are not 'aggrieved' persons under N.C. Gen.
Stat. § 160A-388(e), and they have no standing.
Heery v. Zoning Board of Adjustment, 61 N.C. App. 612, 614, 300
S.E.2d 869, 870 (1983). “[S]pecial damage[s]” are defined as “a
reduction in the value of his [petitioner's] own property.” Id. at
613, 300 S.E.2d at 870. N.C. Gen. Stat. § 160A-388(e) (2001) is a
substantially parallel statute to N.C. Gen. Stat. § 153A-345(e),
the subject statute in the case at bar.
In the instant case, as in Heery, petitioners have failed to
allege, and the superior court has failed to find, that they wouldsuffer “special damages distinct from the rest of the community”
should respondent Mitchell receive the requested special use
permit. Regarding petitioners' purported interest in the instant
controversy, the Petition alleges only that they are “the record
land owners of a tract of land located across the highway from
Respondent's property, and are citizens and residents of Durham
County, North Carolina.” This is clearly insufficient to qualify
as an allegation that petitioners would suffer “special damages
distinct from the rest of the community” should the Board issue the
requested permit. Petitioners' mere averment that they own land in
the immediate vicinity of the property for which the special use
permit is sought, absent any allegation of “special damages
distinct from the rest of the community” in their Petition, is
insufficient to confer standing upon them. Lloyd v. Town of Chapel
Hill, 127 N.C. App. 347, 351, 489 S.E.2d 898, 900 (1997).
In any case or controversy before the North Carolina courts,
“subject matter jurisdiction exists only if a plaintiff has
standing.” Peacock v. Shinn, 139 N.C. App. 487, 491, 533 S.E.2d
842, 845, rev. denied, 353 N.C. 267, 546 S.E.2d 110 (2000). “If a
court finds at any stage of the proceedings that it lacks
jurisdiction over the subject matter of a case, it must dismiss the
case for want of jurisdiction.” State v. Linemann, 135 N.C. App.
734, 739, 522 S.E.2d 781, 785 (1999)(citing Burgess v. Gibbs, 262
N.C. 462, 465, 137 S.E.2d 806, 808 (1964)). “A universal principle
as old as the law is that the proceedings of a court withoutjurisdiction of the subject matter are a nullity.” Burgess v.
Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964).
For the reasons discussed above, we hold that (1) petitioners
lacked standing to appeal to the superior court from the respondent
Board's decision to issue the special use permit to respondent
Mitchell; and (2) that petitioners lack standing to be proper
parties to an appeal before this Court.
Because of petitioners' lack of standing, the order appealed
from is vacated, and the matter is remanded to the superior court
for the entry of an order (1) dismissing the Petition for Writ of
Certiorari filed 23 November 2000; and (2) reinstating the ruling
of the Board of Adjustment dated 24 October 2000.
Vacated and remanded.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
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